Exhibit 10.1





Exhibit 10.1


WESTERN LIBERTY BANCORP




SECOND AMENDED AND RESTATED

EMPLOYMENT AGREEMENT




SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) dated as of
December 18, 2009 but made effective as of July 28, 2009, between Western Liberty Bancorp (formerly
known as Global Consumer Acquisition Corp.), a Delaware corporation, its successors or assigns (the
“Company”), and George Rosenbaum, Jr. (the “Employee”).



W I T N E S S E T H




WHEREAS, the Company has entered into an agreement (the “Merger Agreement”) pursuant
to which it has agreed to acquire Service1st Bank of Nevada, a Nevada-chartered non-member bank, on
the terms and subject to the conditions set forth therein (the “Transaction”);



WHEREAS, the Company and the Employee entered into that certain Employment Agreement, dated as
of July 28, 2009, as amended and restated as of August 31, 2009 (as so amended and restated, the
“Original Employment Agreement”), pursuant to which, among other things, the Company was to
employ the Employee as the Chief Financial Officer of the Company’s Nevada commercial banking
operations (the “Business”) and the Principal Accounting Officer of the Company following
the occurrence of the transactions described therein;



WHEREAS, the Company and the Employee desire to amend and restate the Original Employment
Agreement to read in its entirety as set forth in this Agreement and to provide, among other
things, that the Employee shall be employed as the Executive Vice President of the Business and the
Chief Financial Officer of the Company as of the Effective Date (as defined in Section 2 hereof);
and



WHEREAS, the Employee’s agreement to be employed by the Company as of the Effective Date is a
material inducement to the Company to enter into this Agreement as of the date hereof and to
consummate the transactions contemplated by the Merger Agreement;


 


 









 





NOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein and
of other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:




1. POSITION AND DUTIES.



(a) During the Employment Term (as defined in Section 2 hereof), the Employee shall serve as
the Executive Vice President of the Business and the Chief Financial Officer of the Company. In
each such capacity, the Employee shall have the duties, authorities and responsibilities
commensurate with the duties, authorities and responsibilities of persons in similar capacities in
similarly sized companies, and such other duties, authorities and
responsibilities as the Chairman (the “Chairman”) of the Board of Directors of the
Company (the “Board”) shall designate from time to time that are not inconsistent with the
Employee’s position as the Executive Vice President of the Business or the Chief Financial Officer
of the Company, as the case may be. As the Executive Vice President of the Business, the Employee
shall report to the board of directors of the Business. As the Chief Financial Officer of the
Company (and, for so long as there is not a board of directors of the Business, as Executive Vice
President of the Business), the Employee shall report to (1) the Chairman, (2) if, as and when
requested by the Chairman, the Chief Executive Officer of the Company, and (3) the board of
directors of any subsidiary he may serve hereunder.



(b) During the Employment Term, the Employee shall devote all of the Employee’s business time,
energy and skill and the Employee’s best efforts to the performance of the Employee’s duties with
the Company; provided, that the foregoing shall not prevent the Employee from (i) serving
on the boards of directors of non-profit organizations and, with the prior written approval of the
Board in each instance, other for-profit companies, (ii) participating in charitable, civic,
educational, professional, community or industry affairs, and (iii) managing the Employee’s passive
personal investments; so long as such activities do not, individually or in the aggregate,
interfere or conflict with the Employee’s duties hereunder or create a potential conflict of
interest; provided further, that the foregoing shall not prevent the Employee from participating in
other non-passive activities if, as and when approved by the Board, in each instance. If the Board
determines, in its sole discretion, that any outside activity or activities pose or will pose a
conflict of interest, or that the time commitments required interfere with the performance of the
Employee’s duties hereunder, even if previously approved, the Employee shall, at the request of the
Board, cease such activities at the earliest available opportunity.



(c) The Employee shall serve hereunder as an officer or director of any subsidiary or division
of the Company that includes any portion of the Business as requested by the Company from time to
time without any additional compensation therefor. The Company may, without limiting its liability
hereunder, cause any subsidiary to assume the Company’s obligations hereunder.



2. EMPLOYMENT TERM. The Company agrees to employ the Employee pursuant to the terms of this
Agreement, and the Employee agrees to be so employed, for a term of three years (the “Initial
Term”) commencing as of January 1, 2010 (the “Effective Date”). On each anniversary of
the Effective Date following the Initial Term, the term of this Agreement shall be automatically
extended for successive 1-year periods (each a “Renewal Term”), provided,
however, that either party hereto may elect not to extend the term of this Agreement by
giving written notice to the other party at least 30 days prior to any such anniversary date.
Notwithstanding the foregoing, the Employee’s employment hereunder may be earlier terminated at any
time during the Initial Term or any Renewal Term in accordance with Section 8 hereof, subject to
Section 9 hereof. The period of time between the Effective Date and the termination of the
Employee’s employment hereunder for any reason shall be referred to herein as the “Employment
Term”.


 


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3. BASE SALARY. During the Employment Term, the Company agrees to pay the Employee an annual
base salary which initially shall be not less than $200,000. The Employee’s Base Salary shall be
payable in accordance with the regular payroll practices of the Company.
The Employee’s Base Salary shall be subject to annual review by the Board (or a committee
thereof), and may be increased, but not decreased below its then current level, from time to time
by the Board. For purposes of this Agreement, the base salary as determined herein from time to
time shall constitute “Base Salary”.



4. ANNUAL BONUS. During the Employment Term but commencing after the consummation of the
Transaction, the Employee shall be eligible to receive an annual discretionary incentive payment
under the Company’s annual bonus plan as in effect from time to time (the “Annual Bonus”),
upon the attainment of one of more pre-established performance goals established by the Board or
the Company’s Compensation Committee.



5. TRANSACTION BONUS. Within 10 days following the Effective Date, the Company shall pay to
the Employee a lump sum cash payment equal to a pro rata amount of the Employee’s Base Salary for
the period from July 28, 2009 to the Effective Date (the “Transaction Bonus”).
Notwithstanding the foregoing, promptly after the execution of this Agreement, the Company shall
pay to the Employee a lump sum of $67,000 as an advance (the “Advance”) against the
Transaction Bonus. The Advance will be netted against the Employee’s Transaction Bonus only if and
when the Transaction Bonus becomes due. For the avoidance of doubt, the Advance will not be
repayable by the Employee under any circumstances other than as a credit against the Employee’s
Transaction Bonus if and when it becomes due and the Advance shall not be treated as a credit or
loan for any purposes.




6. EQUITY AWARDS.



(a) No later than 15 days after the consummation of the Transaction, the Employee shall
receive a one-time grant of a number of restricted shares of the Company’s common stock equal to
$250,000 divided by the closing price of the Company’s common stock (all such shares being, the
“Restricted Stock”) on the date of the consummation of the Transaction (the
“Transaction Closing Date”). The Restricted Stock will vest 20% on each of the first,
second, third, fourth and fifth anniversaries of the Transaction Closing Date, subject to the
Employee’s continuous employment through each vesting date, except that the Restricted Stock shall
immediately vest in full upon a Change in Control (as defined below). The Employee agrees that,
for a period of one year following each vesting date (each such period, a “Lock-up
Period”), the Employee will not offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose of, directly or indirectly, the shares of the
Company’s common stock that became vested on such vesting date; provided, however,
that on each such vesting date, the Employee shall be able to sell certain of his Restricted Stock
to the extent the proceeds of each such sale will be applied exclusively towards the satisfaction
of the portion of any tax liabilities that become due and payable that is directly attributable to
the vesting of such shares of common stock; provided further, however, that
the Employee shall not transfer the shares of common stock subject to forfeiture, as provided in
Section 9(c), without first delivering prior notice to the Company, then receiving written approval
from the Company, which approval shall not unreasonably be withheld or delayed. For the avoidance
of doubt, the shares of common stock subject to a Lock-up Period shall not be Restricted Stock and
are not subject to forfeiture, except as otherwise provided in Section 9(c). Each Lock-up Period
shall survive the termination of the Employee’s employment hereunder. The Restricted Stock will be
subject to the terms of a restricted stock agreement to be entered into between the Employee and
the Company that
contain such other provisions as determined necessary by the Board, which provisions shall not
be inconsistent with the terms set forth in this Agreement. For purposes of this Agreement, a
“Change in Control” means, (1) with respect to the Restricted Stock, the acquisition,
directly or indirectly, in one or more transactions, by any person or group of persons acting in
concert, of 50% of more of the then outstanding voting securities of the Company or the power to
cause the election of a majority of the members of the Board, and (2) with respect to the Change in
Control Payment (as defined below), the acquisition, directly or indirectly, in one or more
transactions, by any person or group of persons acting in concert, of 50% of more of the then
outstanding voting securities of the Company and/or, at any time after the Transaction Closing
Date, the Business.


 


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(b) During the Employment Term, the Employee shall be eligible to receive other equity and
other long-term incentive awards under the equity-based incentive compensation plans adopted by the
Company during the Employment Term for which the Company’s senior executives are generally
eligible. The level of the Employee’s participation in any such plan, if any, shall be determined
in the sole discretion of the Board from time to time.




7. EMPLOYEE BENEFITS; CHANGE IN CONTROL BENEFITS.



(a) BENEFIT PLANS. During the Employment Term, the Employee shall be entitled to participate
in any employee benefit plan that the Company has adopted or may adopt, maintain or contribute to
for the benefit of its employees generally from time to time in accordance with, and subject to,
the terms and conditions thereof, including satisfying the applicable eligibility requirements;
provided, however, that the Company may in its sole discretion modify or terminate
any employee benefit plan at any time. Notwithstanding the foregoing, the Company shall pay the
Employee up to $900 per month to be applied solely towards the payment, or reimbursement of
payment, of premiums on health insurance coverage procured by the Employee until the first to occur
of the Company offering a health plan to the Employee or the Employee’s employment being
terminated.



(b) VACATIONS. During the Employment Term, the Employee shall be entitled to four (4) weeks
of paid vacation per calendar year (as prorated for partial years) in accordance with the Company’s
policy on accrual and use applicable to employees as in effect from time to time. The Employee
agrees that any vacation taken by the Employee during the Employment Term shall be taken at times
which are mutually determined by the Chairman and the Employee not to interfere, in any material
respect, with the Employee’s performance of his duties hereunder. Notwithstanding the foregoing,
from July 28, 2009 through the Effective Date, the Employee shall accrue vacation time pro rata on
an annual basis, which time the Employee shall use during the course of the Employment Term in
accordance with the Company’s policy on accrual and use in effect from time to time.



(c) BUSINESS AND ENTERTAINMENT EXPENSES. From July 28, 2009, upon presentation of appropriate
documentation, the Employee shall be reimbursed in accordance with the Company’s expense
reimbursement policy, for all reasonable business and entertainment expenses incurred in connection
with the performance of the Employee’s duties hereunder and the Company’s policies with regard
thereto.


 


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(d) CHANGE IN CONTROL PAYMENT. If the Employee remains the Chief Financial Officer of the
Company and/or the Executive Vice President of the Business through the closing of a Change in
Control, then, upon such closing, the Employee shall receive a single cash payment in an amount
equal to one (1) times the Employee’s Base Salary for the year prior to the date of such closing
(the “Change in Control Payment”).



8. TERMINATION. The Employee’s employment and/or the Employment Term shall terminate on the
first of the following to occur:



(a) DISABILITY. Upon written notice by the Company to the Employee of termination due to
Disability. For purposes of this Agreement, “Disability” shall be defined as the inability
of the Employee to have performed the Employee’s material duties hereunder due to a physical or
mental injury, infirmity or incapacity for 180 days (including weekends and holidays) in any
365-day period.




(b) DEATH. Automatically on the date of death of the Employee.



(c) CAUSE. Immediately upon written notice by the Company to the Employee of a termination
for Cause. “Cause” shall mean:




(i) the Employee’s willful misconduct or gross negligence in the performance of the
Employee’s duties to the Company or the Business that has or could reasonably be expected to
have an adverse effect on the Company or the Business that, if curable, is not cured within
30 days of the giving of written notice thereof to the Employee;




(ii) the Employee’s repeated refusal or failure to perform the Employee’s duties to the
Company or the Business or to follow the lawful directives of the Board or a more senior
executive (other than as a result of death or a physical or mental incapacity), which
refusal or failure continued for at least 30 days following the giving of written notice of
demand for substantial performance to the Employee;




(iii) indictment for, conviction of, or pleading of guilty or nolo
contendere to, a felony or any crime involving moral turpitude;




(iv) the Employee’s embezzlement or misappropriation of corporate funds or other acts
of theft, fraud, malfeasance, self-dealing, dishonesty or breach of fiduciary duty in
connection with the performance of the Employee’s duties to the Company or the Business;




(v) the Employee either not receiving approval from the Bank Regulators to serve as
either the Executive Vice President of the Business or the Chief Financial Officer of the
Company or later being determined by the Bank Regulators to be unsuitable to serve in either
such capacity. “Bank Regulators” shall mean the Federal Deposit Insurance
Corporation or any successor thereto, the Federal Reserve Board, the State of Nevada
Financial Institutions Division, or any other federal or state regulatory agency with
authority over the Company or Service1st Bank of Nevada;




(vi) breach of Section 11 of this Agreement; or


 


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(vii) material breach of any other Section of this Agreement or any other agreement
with the Company, the Business or a violation of the Company’s code of conduct or other
written policy that, if curable, is not cured within 30 days of the giving of written notice
thereof to the Employee.



(d) WITHOUT CAUSE. Immediately upon written notice by the Company to the Employee of an
involuntary termination without Cause (other than for death or Disability).



(e) GOOD REASON. Upon written notice by the Employee to the Company of a termination for Good
Reason. “Good Reason” shall mean the occurrence of any of the following events without the
written consent of the Employee, unless such events are fully corrected in all material respects by
the Company within 30 days following its receipt of the written notification by the Employee to the
Company described below:




(i) diminution in the Employee’s Base Salary; or




(ii) relocation of the Employee’s primary work location outside Clark County, Nevada.



Any claim of any such event as “Good Reason” shall be deemed irrevocably waived by the Employee
unless: (x) the Employee delivers written notice to the Board of his intent to resign from his
employment hereunder for Good Reason within 60 days following the date on which the event the
Employee claims constitutes Good Reason occurs, which notice shall specifically identify the facts
and circumstances the Employee claims constitutes Good Reason, and (y) the Employee resigns from
his employment hereunder for Good Reason within 150 days following the date on which the event the
Employee claims constitutes Good Reason occurs.



(f) WITHOUT GOOD REASON. Upon 30 days’ prior written notice by the Employee to the Company of
the Employee’s voluntary termination of employment without Good Reason; provided, that upon
receipt of such notice the Company may, in its sole discretion, make such termination effective at
an earlier date and the termination shall still be treated as a voluntary termination by the
Employee without Good Reason.



(g) EXPIRATION OF EMPLOYMENT TERM; NON-EXTENSION OF AGREEMENT. Upon the expiration of the
Employment Term due to a non-extension of the Agreement by the Company or the Employee pursuant to
the provisions of Section 2 hereof.




9. CONSEQUENCES OF TERMINATION.



(a) DEATH. In the event that the Employee’s employment and the Employment Term ends on
account of the Employee’s death, the Employee’s estate shall be entitled to the following:




(i) any unpaid Base Salary through the date of termination, paid in accordance with the
regular payroll practices of the Company;




(ii) any Annual Bonus earned but unpaid with respect to the fiscal year ending on or
preceding the date of termination;


 


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(iii) reimbursement for any unreimbursed business expenses incurred through the date of
termination pursuant to, and paid in accordance with, Sections 6(c) and 24(b)(iii) of this
Agreement;




(iv) any accrued but unused vacation time paid in accordance with Company policy; and




(v) such vested accrued benefits, if any, as to which the Employee may be entitled
under the Company’s employee benefit plans and programs applicable to the Employee as of the
date of termination (other than any severance pay plan), which shall be paid or provided in
accordance with the terms of the applicable plan or program (collectively, Sections 9(a)(i)
through 9(a)(v) hereof shall be hereafter referred to as the “Accrued Benefits”).



For the avoidance of doubt, in the event that the Employee’s employment and the Employment Term
ends on account of the Employee’s death, any unvested shares of Restricted Stock shall be
forfeited.



(b) DISABILITY. In the event that the Employee’s employment and/or Employment Term ends on
account of the Employee’s Disability, the Company shall pay or provide the Employee with the
Accrued Benefits. For the avoidance of doubt, in the event that the Employee’s employment and/or
Employment Term ends on account of the Employee’s Disability, any unvested shares of Restricted
Stock shall be forfeited.



(c) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON OR AS A RESULT OF EMPLOYEE NON-EXTENSION OF
THIS AGREEMENT. If the Employee’s employment is terminated (i) by the Company for Cause, (ii) by
the Employee without Good Reason, or (iii) as a result of the Employee’s non-extension of the
Employment Term as provided in Section 2 hereof, the Company shall pay to the Employee the Accrued
Benefits, and, if the Employee’s employment is terminated on account of Section 9(c)(i) during the
Employment Term or Section 9(c)(ii) through the fifth anniversary of the Effective Date, the
Employee shall forfeit and transfer to the Company at no cost (other than any amounts the Employee
paid to acquire such shares) 50% of the shares of Restricted Stock vested (subject to reduction for
any amount of tax liability incurred by the Employee with respect to that 50% of the shares);
provided, that the Employee has not made an election with respect to the shares of
Restricted Stock under Section 83(b) of the Code (as defined in Section 24(b)), as of the date of
termination (including any shares subject to a Lock-up Period), and, for the avoidance of doubt,
any unvested shares of Restricted Stock shall be forfeited.


 


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(d) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON OR AS A RESULT OF COMPANY NON-EXTENSION OF
THIS AGREEMENT. If the Employee’s employment by the Company is terminated (x) by the Company other
than for Cause, (y) by the Employee for Good Reason, or (z) as a result of the Company’s
non-extension of the Employment Term as provided in Section 2 hereof, the Company shall pay or
provide the Employee with the Accrued Benefits and, subject to the Employee’s compliance with the
obligations in Sections 10, 11 and 12 hereof, the following, subject to the provisions of Section
24 hereof: subject to (A) the Employee’s timely election of continuation coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (B)
the Employee’s continued co-payment of premiums at the same level and cost to the Employee as if
the Employee were an employee of the Company (excluding, for purposes of calculating cost, an
employee’s ability to pay premiums with pre-tax dollars) (the “active employee rate”), continued
participation in the Company’s group health plan (to the extent permitted under applicable law and
the terms of such plan) which covers the Employee for a period of up to 18 months at the Company’s
expense (other than as set forth in sub-section (B)), provided, that the Employee is
eligible and remains eligible for COBRA coverage; and provided further, that in the
event that the Employee obtains other employment that offers group health benefits, such
continuation of coverage by the Company under this Section 9(d) shall immediately cease.
Notwithstanding the foregoing, if the benefits under the Company’s group health plan will be
taxable to the Employee, then in lieu of the Company’s payments for such continued participation,
the Company shall reimburse the Employee for his premiums for continued coverage under such plan in
the amount that the cost of such coverage exceeds the active employee rate (as determined based on
the Executive’s premium rate in effect on the date of termination); provided,
however, that Company shall have no contractual or other obligation to make any payment to
which the Employee shall be entitled pursuant to this Section 9(d) to the Employee unless (i) such
payment receives the prior approval of the appropriate federal banking agency, if required at that
time by 12 U.S.C. Section 1828(k),12 C.F.R. Part 359, or other federal or state laws, rules or
regulations, and (ii) such obligation and such payment comply in all other respects with 12 U.S.C.
Section 1828(k),12 C.F.R. Part 359, and other federal and state laws, rules or regulations, to the
extent that such provisions are applicable at that time; provided further,
however, that this Agreement shall comply with 12 U.S.C. Section 1828(k), 12 C.F.R. Part
359, and other applicable federal and state laws, rules or regulations.



For the avoidance of doubt, in the event that the Employee’s employment and/or Employment Term ends
in accordance with this Section 9(d), any unvested shares of Restricted Stock shall be forfeited,
but no vested shares of Restricted Stock shall be forfeited. Payments and benefits provided in
this Section 9(d) shall be in lieu of any termination or severance payments or benefits for which
the Employee may be eligible under any of the plans, policies or programs of the Company.



(e) OTHER OBLIGATIONS. Upon any termination of the Employee’s employment with the Company,
the Employee shall promptly resign from any other position as an officer, director or fiduciary of
any Company-related entity.



10. RELEASE; NO MITIGATION. Any and all amounts payable and benefits or additional rights
provided to the Employee upon a termination of his employment pursuant to Section 9 (other than the
Accrued Benefits) shall only be payable or provided if the Employee delivers to the Company and
does not revoke a general release of claims in favor of the Company and certain related parties in
a form reasonably satisfactory to the Company, which the Company shall provide to the Employee
within seven days following the date of termination. Such release shall be executed and delivered
(and no longer subject to revocation, if applicable) within 60 days following termination. In no
event shall the Employee be obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Employee under any of the provisions of this Agreement,
nor shall the amount of any payment hereunder be reduced by any compensation earned by the Employee
as a result of employment
by a subsequent employer, except as provided in Section 9(d) hereof. The Employee shall not
be entitled to any release of claims from the Company in favor of the Employee.


 


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11. RESTRICTIVE COVENANTS.



(a) CONFIDENTIALITY. The Employee agrees that the Employee shall not, from and after July 28,
2009, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any
person, other than in the course of the Employee’s assigned duties and for the benefit of the
Company, any business and technical information or trade secrets, nonpublic, proprietary or
confidential information, knowledge or data relating to the Company, any of its subsidiaries,
affiliated companies or businesses, which shall have been obtained by the Employee from and after
July 28, 2009. The foregoing shall not apply to information that (A) was known to the public prior
to its disclosure to the Employee; (B) becomes generally known to the public subsequent to
disclosure to the Employee through no wrongful act of the Employee or any representative of the
Employee; or (C) the Employee is required to disclose by applicable law, regulation or legal
process (provided, that the Employee provides the Company with prior notice of the
contemplated disclosure and cooperates with the Company at its expense in seeking a protective
order or other appropriate protection of such information).



(b) NONCOMPETITION. The Employee acknowledges that the Employee performs services of a unique
nature for the Company that are irreplaceable, and that the Employee’s performance of such services
to a competing business within the State of Nevada will result in irreparable harm to the Company.
Accordingly, from July 28, 2009 through the first anniversary of the termination of the Employee’s
employment hereunder, the Employee agrees that the Employee will not, directly or indirectly, own,
manage, operate, control, be employed by (whether as an employee, consultant, independent
contractor or otherwise, and whether or not for compensation) or render services to any person,
firm, corporation or other entity, in whatever form, engaged in competition with the Company or any
of its subsidiaries or affiliates or in any other material business in which the Company or any of
its subsidiaries or affiliates is engaged on the date of termination or in which they have planned,
on or prior to such date, to be engaged in on or after such date, within the State of Nevada.
Notwithstanding the foregoing, nothing herein shall prohibit the Employee from being a passive
owner of not more than one percent of the equity securities of a publicly traded corporation
engaged in a business that is in competition with the Company or any of its subsidiaries or
affiliates, so long as the Employee has no active participation in the business of such
corporation.



(c) NONSOLICITATION; NONINTERFERENCE. (i) From July 28, 2009 through the first anniversary
of the termination of the Employee’s employment hereunder, the Employee agrees that the Employee
shall not, except in the furtherance of the Employee’s duties hereunder, directly or indirectly,
individually or on behalf of any other person, firm, corporation or other entity, solicit, aid or
induce any customer of the Company or any of its subsidiaries or affiliates to purchase goods or
services then sold by the Company or any of its subsidiaries or affiliates from another person,
firm, corporation or other entity or assist or aid any other persons or entity in identifying or
soliciting any such customer.


 


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(ii) From July 28, 2009 through the first anniversary of the termination of the
Employee’s employment hereunder, the Employee agrees that the Employee shall not,
except in the furtherance of the Employee’s duties hereunder, directly or indirectly,
individually or on behalf of any other person, firm, corporation or other entity, (A)
solicit, aid or induce any employee, representative or agent of the Company or any of its
subsidiaries or affiliates to leave such employment or retention or to accept employment
with or render services to or with any other person, firm, corporation or other entity
unaffiliated with the Company or hire or retain any such employee, representative or agent,
or take any action to materially assist or aid any other person, firm, corporation or other
entity in identifying, hiring or soliciting any such employee, representative or agent, or
(B) interfere, or aid or induce any other person or entity in interfering, with the
relationship between the Company or any of its subsidiaries or affiliates and any of their
respective vendors, joint venturers or licensors. An employee, representative or agent
shall be deemed covered by this Section 11(c)(ii) while so employed or retained and for a
period of six (6) months thereafter.



(d) NONDISPARAGMENT. The Employee agrees not to make negative comments or otherwise disparage
the Company or its officers, directors, employees, shareholders, agents or products, in any manner
likely to be harmful to them or their business, business reputation or personal reputation other
than while employed by the Company, in the good faith performance of the Employee’s duties to the
Company. The foregoing shall not be violated by truthful statements in response to legal process,
required governmental testimony or filings, or administrative or arbitral proceedings (including,
without limitation, depositions in connection with such proceedings); provided, that prior
to making any such statement the Employee shall provide the Company with prior notice and shall
reasonably cooperate with the Company in seeking a protective order or other appropriate protection
against making such statement.



(e) INVENTIONS. (i) The Employee acknowledges and agrees that all ideas, methods,
inventions, discoveries, improvements, work products or developments (“Inventions”),
whether patentable or unpatentable, (A) that relate to the Employee’s work with the Company, made
or conceived by the Employee, solely or jointly with others, during the Employment Term, or (B)
suggested by any work that the Employee performs in connection with the Company, either while
performing the Employee’s duties to the Company or on the Employee’s own time, but only insofar as
the Inventions are related to the Employee’s work as an employee or other service provider to the
Company, shall belong exclusively to the Company (or its designee), whether or not patent
applications are filed thereon. The Employee will keep full and complete written records (the
“Records”), in the manner prescribed by the Company, of all Inventions, and will promptly
disclose all Inventions completely and in writing to the Company. The Records shall be the sole
and exclusive property of the Company, and the Employee will surrender them upon the termination of
the Employment Term, or upon the Company’s request. The Employee will assign to the Company the
Inventions and all patents that may issue thereon in any and all countries, whether during or
subsequent to the Employment Term, together with the right to file, in the Employee’s name or in
the name of the Company (or its designee), applications for patents and equivalent rights (the
“Applications”). The Employee will, at any time during and subsequent to the Employment
Term, make such applications, sign such papers, take all rightful oaths, and perform all acts as
may be requested from time to time by the Company with respect to the Inventions. The Employee
will also execute assignments to the Company (or its designee) of the Applications, and give the
Company and its attorneys all reasonable assistance (including
the giving of testimony) to obtain the Inventions for its benefit, all without additional
compensation to the Employee from the Company, but entirely at the Company’s expense.


 


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(ii) In addition, the Inventions will be deemed Work for Hire, as such term is defined
under the copyright laws of the United States, on behalf of the Company and the Employee
agrees that the Company will be the sole owner of the Inventions, and all underlying rights
therein, in all media now known or hereinafter devised, throughout the universe and in
perpetuity without any further obligations to the Employee. If the Inventions, or any
portion thereof, are deemed not to be Work for Hire, the Employee hereby irrevocably
conveys, transfers and assigns to the Company, all rights, in all media now known or
hereinafter devised, throughout the universe and in perpetuity, in and to the Inventions,
including, without limitation, all of the Employee’s right, title and interest in the
copyrights (and all renewals, revivals and extensions thereof) to the Inventions, including,
without limitation, all rights of any kind or any nature now or hereafter recognized,
including without limitation, the unrestricted right to make modifications, adaptations and
revisions to the Inventions, to exploit and allow others to exploit the Inventions and all
rights to sue at law or in equity for any infringement, or other unauthorized use or conduct
in derogation of the Inventions, known or unknown, prior to the date hereof, including,
without limitation, the right to receive all proceeds and damages therefrom. In addition,
the Employee hereby waives any so-called “moral rights” with respect to the Inventions. The
Employee hereby waives any and all currently existing and future monetary rights in and to
the Inventions and all patents that may issue thereon, including, without limitation, any
rights that would otherwise accrue to the Employee’s benefit by virtue of the Employee being
an employee of or other service provider to the Company.



(f) RETURN OF COMPANY PROPERTY. On the date of the Employee’s termination of employment with
the Company for any reason (or at any time prior thereto at the Company’s request), the Employee
shall return all property belonging to the Company or its affiliates (including, but not limited
to, any Company-provided laptops, computers, cell phones, wireless electronic mail devices or other
equipment, or documents and property belonging to the Company).



(g) REFORMATION. If it is determined by a court of competent jurisdiction in any state that
any restriction in this Section 11 is excessive in duration or scope or is unreasonable or
unenforceable under the laws of that state, it is the intention of the parties that such
restriction may be modified or amended by the court to render it enforceable to the maximum extent
permitted by the laws of that state.



(h) TOLLING. In the event of any violation of the provisions of this Section 11, the Employee
acknowledges and agrees that the post-termination restrictions contained in this Section 11 shall
be extended by a period of time equal to the period of such violation, it being the intention of
the parties hereto that the running of the applicable post-termination restriction period shall be
tolled during any period of such violation.


 


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(i) LIMITATIONS. Notwithstanding anything in this Section 11 to the contrary, if the
Employee’s employment under this Agreement is terminated (x) by the Company other than
for Cause, (y) by the Employee for Good Reason, or (z) as a result of the Company’s
non-extension of the Employment Term as provided in Section 2 hereof, then the restrictive
covenants set forth in Sections 11(b) and (c)(i) shall not be effective after any such termination,
unless either of the following shall occur: (i) the Employee shall receive a Change of Control
Payment, in which case such covenants shall remain in effect for one year after receipt of such
payment, or (ii) the Company shall agree (which it may, but is under no obligation to, do in its
sole and absolute discretion) to continue to pay the Employee his then Base Salary for a period of
one year, in which case such covenants shall remain in effect for one year after such termination.
For the avoidance of doubt, the Company shall not be required to make any of the foregoing payments
unless the Employee shall have executed and delivered to the Company a release of the type
contemplated by Section 10.



(j) SURVIVAL OF PROVISIONS. The obligations contained in Sections 11 and 12 hereof shall
survive the termination or expiration of this Agreement, the Employment Term and/or the Employee’s
employment with the Company and shall be fully enforceable thereafter.



12. COOPERATION. Upon the receipt of reasonable notice from the Company (including its
outside counsel), the Employee agrees that while employed by the Company and thereafter, the
Employee will respond and provide information with regard to matters in which the Employee has
knowledge as a result of the Employee’s employment with the Company, and will provide reasonable
assistance to the Company, its affiliates and their respective representatives in defense of any
claims that may be made against the Company or its affiliates, and will assist the Company and its
affiliates in the prosecution of any claims that may be made by the Company or its affiliates, to
the extent that such claims may relate to the period of the Employee’s employment with the Company.
The Employee agrees to promptly inform the Company if the Employee becomes aware of any lawsuits
involving such claims that may be filed or threatened against the Company or its affiliates. The
Employee also agrees to promptly inform the Company (to the extent that the Employee is legally
permitted to do so) if the Employee is asked to assist in any investigation of the Company or its
affiliates (or their actions), regardless of whether a lawsuit or other proceeding has then been
filed against the Company or its affiliates with respect to such investigation, and shall not do so
unless legally required. If the Employee is required to provide services pursuant to this Section
12 following the Employment Term for more than five hours per month for more than three months,
then (a) the Employee shall receive a fee for his time at a rate of $1,000 per day and (b) in
accordance with its reimbursement policies and procedures as in effect, including the timely
submission of proper documentation supporting such expenses, the Company will pay (or reimburse the
Employee for) reasonable out-of-pocket travel, lodging, communication and duplication expenses
incurred in connection with the performance of such services.



13. EQUITABLE RELIEF AND OTHER REMEDIES. The Employee acknowledges and agrees that the
Company’s remedies at law for a breach or threatened breach of any of the provisions of Section 11
or Section 12 hereof would be inadequate and, in recognition of this fact, the Employee agrees
that, in the event of such a breach or threatened breach, in addition to any remedies at law, the
Company, without posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, a temporary restraining order, a temporary or permanent injunction or any
other equitable remedy which may then be available. In the event of a violation by the Employee of
Section 11 or Section 12 hereof, any
severance being paid or provided to the Employee pursuant to this Agreement or otherwise shall
immediately cease, and any severance previously paid to the Employee shall be immediately repaid to
the Company.


 


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14. NO ASSIGNMENTS. This Agreement is personal to each of the parties hereto. Except as
provided in this Section 14 hereof, no party may assign or delegate any rights or obligations
hereunder without first obtaining the written consent of the other party hereto. The Employee
hereby acknowledges and agree that the Company may assign this Agreement (including the provisions
of Section 11 and Section 12) to any successor to all or substantially all of the business and/or
assets of the Company. As used in this Agreement, “Company” shall mean the Company and any
successor to its business and/or assets.



15. NOTICE. For purposes of this Agreement, notices and all other communications provided for
in this Agreement shall be in writing. Each notice and all other communications shall be delivered
either by hand, by confirmed facsimile or electronic mail (but only if followed by transmittal by
national overnight courier or hand delivered in person on the next business day), by guaranteed
overnight delivery service, or by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:




If to the Employee:






At the address (or to the facsimile number) shown

on the records of the Company






If to the Company:






Western Liberty Bancorp

1370 Avenue of the Americas

28th Floor

New York, New York 10019

Attention: Jason N. Ader, Chairman

Facsimile: 212.445.7800






with a copy to:






Proskauer Rose LLP

1585 Broadway

New York, New York 10036-8299

Attention: Jeffrey A. Horwitz

Facsimile: 212.969.2900



or to such other address as either party may have furnished to the other in writing in accordance
herewith. Each notice and all other communications shall be deemed duly given and effective upon
actual receipt (or refusal of receipt).


 


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16. SECTION HEADINGS; INCONSISTENCY. The section headings used in this Agreement are included
solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement. In the event of any inconsistency between the
terms of this Agreement and any form, award, plan or policy of the Company, the terms of this
Agreement shall govern and control.



17. SEVERABILITY. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or enforceability of
the other provisions hereof.



18. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and the same instrument.



19. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of New York, without
regard to its principles of conflicts of laws. Each of the Parties irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York located in New York City or the
United States District Court for the Southern District of New York for the purpose of any suit,
action, proceeding or judgment relating to or arising out of this Agreement and the transactions
contemplated hereby. Service of process in connection with any such suit, action or proceeding may
be served on each party hereto anywhere in the world by the same methods as are specified for the
giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the
jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in
such court. Each party hereto irrevocably waives any objection to the laying of venue of any such
suit, action or proceeding brought in such courts and irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH
RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS
WAIVER.



20. INDEMNIFICATION. The Company hereby agrees to indemnify the Employee and hold the
Employee harmless to the extent provided under the By-Laws of the Company against and in respect of
any and all actions, suits, proceedings, claims, demands, judgments, costs, expenses (including
reasonable attorney’s fees), losses, and damages resulting from the Employee’s good faith
performance of the Employee’s duties and obligations with the Company. This obligation shall
survive the termination of the Employee’s employment with the Company. Notwithstanding the
foregoing, the Employee’s right to indemnification pursuant to this Section 20 shall be made
ineffective as necessary to ensure compliance with 12 U.S.C. Section 1828(k),12 C.F.R. Part 359, or
other federal or state laws, rules or regulations.



21. LIABILITY INSURANCE. The Company shall cover the Employee under directors’ and officers’
liability insurance both during and, while potential liability exists, after the term of this
Agreement in the same amount and to the same extent as the Company covers its other officers and
directors.


 


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22. MISCELLANEOUS. No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed by
the Employee and such officer or director as may be designated by the Board. No waiver by
either party hereto at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent
time. This Agreement together with all exhibits hereto amends and restates in its entirety the
Original Employment Agreement and sets forth the entire agreement of the parties hereto in respect
of the subject matter contained herein and supersedes any and all prior agreements or
understandings between the Employee and the Company with respect to the subject matter hereof
(including, without limitation, the Original Employment Agreement). No agreements or
representations, oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this Agreement.



23. REPRESENTATIONS. The Employee represents and warrants to the Company that (a) the
Employee has the legal right to enter into this Agreement and to perform all of the obligations on
the Employee’s part to be performed hereunder in accordance with its terms, and (b) the Employee is
not a party to any agreement or understanding, written or oral, and is not subject to any
restriction, which, in either case, could prevent the Employee from entering into this Agreement or
performing all of the Employee’s duties and obligations hereunder. In addition, the Employee
acknowledges that the Employee is aware of Section 304 (Forfeiture of Certain Bonuses and Profits)
of the Sarbanes-Oxley Act of 2002 and the right of the Company to be reimbursed for certain
payments to the Employee in compliance therewith. In addition, the Employee hereby represents,
warrants and agrees with the Company that: (i) a portion of the compensation payable to the
Employee pursuant to this Agreement constitutes good and valuable consideration, the receipt and
sufficiency of which are hereby expressly acknowledged, for the covenants and agreements contained
in Section 11 and Section 12; (ii) the covenants and agreements contained in Section 11 and Section
12 are reasonable, appropriate and suitable in their geographic scope, duration and content; the
Employee shall not, directly or indirectly, raise any issue of the reasonableness, appropriateness
and suitability of the geographic scope, duration or content of such covenants and agreements in
any proceeding to enforce such covenants and agreements; and such covenants and agreements shall
survive the termination of the Employees employment for the durations set forth therein; (iii) the
enforcement of any remedy under this Agreement will not prevent the Employee from earning a
livelihood because the Employee’s past work history and abilities are such that the Employee
reasonably can expect to find work, if he so chooses, in other areas and lines of business; (iv)
the covenants and agreements stated in Section 11 and Section 12 are essential for the Employer’s
reasonable protection; and (v) the Company has reasonably relied on these covenants and agreements
by the Employee.




24. TAX MATTERS.



(a) WITHHOLDING. The Employee shall pay, or make arrangements satisfactory to the Company to
pay, in a manner satisfactory to the Company, an amount equal to the amount of all applicable
federal, state and local taxes (but not the Company’ share of Social Security taxes) that the
Company is required to withhold at any time. In the absence of such arrangements, the Company may
withhold from any and all amounts payable under this Agreement such federal, state and local taxes
as may be required to be withheld pursuant to any applicable law or regulation, including the right
to retain, and not deliver to the Employee, vested
 shares of the Company’s Restricted Stock otherwise deliverable to the Employee hereunder. For
the avoidance of doubt, the Employee acknowledges that the Advance pursuant to Section 5 shall be
subject to withholding.


 


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(b) SECTION 409A COMPLIANCE.




(i) The parties agree that this Agreement shall be interpreted to comply with Code
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the
regulations and guidance promulgated thereunder to the extent applicable (collectively
“Code Section 409A”) and all provisions of this Agreement shall be construed in a
manner consistent with the requirements for avoiding taxes or penalties under Code Section
409A. In no event will the Company be liable for any additional tax, interest or penalties
that may be imposed on the Employee by Code Section 409A or any damages for failing to
comply with Code Section 409A or the provisions of this Section 24.




(ii) Notwithstanding any provision to the contrary in this Agreement, a termination of
the Employee’s employment shall not be deemed to have occurred for purposes of any provision
of this Agreement providing for the payment of any amounts or benefits upon or following a
termination of employment unless such termination is also a “separation from service”
(within the meaning of Code Section 409A) and, for purposes of any such provision of this
Agreement, references to a “termination” or “termination of employment” will mean separation
from service. If the Employee is deemed on the date of termination of his employment to be
a “specified employee”, within the meaning of that term under Section 409A(a)(2)(B) of the
Code and using the identification methodology selected by the Company from time to time, or
if none, the default methodology set forth in Code Section 409A, then with regard to any
payment or the providing of any benefit that constitutes “non-qualified deferred
compensation” pursuant to Code Section 409A, such payment or benefit will not be made or
provided prior to the earlier of (i) the expiration of the six-month period measured from
the date of the Employees separation from service or (ii) the date of the Employee’s death.
On the first day of the seventh month following the date of the Employee’s separation from
service or, if earlier, on the date of the Employee’s death, all payments delayed pursuant
to this Section (whether they would have otherwise been payable in a single sum or in
installments in the absence of such delay) will be paid or reimbursed to the Employee in a
lump sum, and any remaining payments and benefits due under this Agreement will be paid or
provided in accordance with the normal payment dates specified for them herein.




(iii) Any reimbursement of costs and expenses provided for under this Agreement shall
be made no later than December 31 of the calendar year next following the calendar year in
which the expenses to be reimbursed are incurred.




(iv) With regard to any provision herein that provides for reimbursement of expenses or
in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement
or in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii)
the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any
taxable year shall not affect the expenses eligible for reimbursement,
or in-kind benefits to be provided, in any other taxable year, provided, that
the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any
arrangement covered by Code Section 105(b) solely because such expenses are subject to a
limit related to the period the arrangement is in effect.


 


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(v) With regard to any installment payments provided for herein, each installment
thereof shall be deemed a separate payment for purposes of Code Section 409A.




(vi) Whenever a payment under this Agreement specifies a payment period with reference
to a number of days, the actual date of payment within the specified period shall be within
the sole discretion of the Company.




(vii) To the extent that this Agreement provides for the Employee’s indemnification by
the Company and/or the payment or advancement of costs and expenses associated with
indemnification, any such amounts shall be paid or advanced to the Employee only in a manner
and to the extent that such amounts are exempt from the application of Code Section 409A in
accordance with the provisions of Treasury Regulation 1.409A-1(b)(10).



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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	WESTERN LIBERTY BANCORP

 	 
	 	By:  	/s/ Jason N. Ader
 	 
	 	 	Name:  	Jason N. Ader 	 
	 	 	Title:  	Chairman 	 
	 	 	 
	 	By:  	/s/ George Rosenbaum, Jr.
 	 
	 	 	GEORGE ROSENBAUM, JR. 	 




 


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